Academy, Inc. v. Vance

• Citation: 320 F. Supp. 1357
• Decision Date: 13 November 1970
• Docket Number: Civ. A. No. 70-H-1115.
• Parties: ACADEMY, INC., et al. v. Carol VANCE, District Attorney of Harris County, Texas, et al.
• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas

320 F. Supp. 1357

ACADEMY, INC., et al. v. Carol VANCE, District Attorney of Harris County, Texas, et al.

Civ. A. No. 70-H-1115.

United States District Court, S. D. Texas, Houston Division.

November 13, 1970.

Clyde Woody, Marian Rosen, Woody & Rosen, Houston, Tex., for plaintiff.

Joe Moss, Michael Hinton, Houston, Tex., for Harris Co.

Edward Cazares, Houston, Tex., Joseph G. Rollins, for City of Houston.

Lonny Zwiener, Asst. Atty. Gen., Austin, Tex., for State of Texas.

Before INGRAHAM, Circuit Judge and SINGLETON and SEALS, District Judges.

MEMORANDUM AND ORDER

SEALS, District Judge.

Plaintiffs are engaged in the operation of movie theaters in the City of Houston. On October 7, 1970, their theaters were the objects of a series of raids planned and perpetrated by law enforcement officials of Houston and Harris County. Plaintiffs were arrested under the authority of Article 527, Vernon's Ann.P.C., and charged with distribution of obscene motion pictures. Plaintiffs, alleging the unconstitutionality of Article 527, thereupon sought to convene a three-judge panel. Pending determination by such court of their request for a temporary injunction against enforcement of Article 527, plaintiffs applied for and obtained a temporary restraining order. Upon final determination by the three-judge panel, plaintiffs pray for a permanent injunction prohibiting defendants, representatives of the City of Houston and Harris County, from enforcing Article 527 against them, and further request damages to each plaintiff in the amount of $15,000, as well as $25,000 in attorneys' fees. The State of Texas, exercising its prerogative of intervention in actions challenging the validity of statutes of statewide application, has been made a party to these proceedings.

The immediate question before this court is whether to grant a temporary injunction pending a hearing on the merits of the whole case. The problem is the collision between the Anti-Injunction Act and principles of comity on the one hand, and, on the other, the historic decision of the Supreme Court in Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) and its confused progeny. The Anti-Injunction Act, 28 U.S.C. § 2283, bars a federal court from enjoining any pending criminal prosecution in a State court. Traditional principles of comity dictate that a federal court should not interfere with a State's good faith administration of its criminal laws. Douglas v. City of Jeanette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943). But Dombrowski carved out a limited exception for those "preferred rights" protected by the first amendment.¹ In articulating this novel concept, the Court found that, not only will defense of a criminal prosecution not generally assure sufficient vindication of first amendment rights, but the

"* * * chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure." Dombrowski, supra, 380 U.S. at 487, 85 S.Ct. at 1121.

Subsequent to Dombrowski, the Court made clear that its decision in that case should not be construed to give federal courts carte blanche to enjoin all State prosecutions about which they might entertain misgivings. Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed. 2d 182 (1968). The test for determining the propriety of a federal court injunction to restrain the kind of prosecution at issue here was most clearly formulated by the Fifth Circuit in Sheridan v. Garrison, 415 F.2d 699 (5th Cir. 1969). The court there held that two elements must be present before such an order will issue:

"(1) a bad-faith use of the state's legal machinery with the purpose of inhibiting the exercise of the right of free speech (or, alternatively, the existence of a statute unconstitutional on its face affecting free speech) and (2) a probability of irreparable injury, which is established if there is a showing of a significant chilling effect on speech that cannot be avoided by state court adjudication." Sheridan, supra, at 709.

We assume without specifically so finding that plaintiffs have shown a probability of irreparable injury. That inquiry will not be necessary to a decision on the question of whether this court should issue a temporary injunction, since plaintiffs have failed to persuade the court either that defendants are acting in bad faith or that Article 527 is unconstitutional on its face. We will deal first with the statute.

In view of the Supreme Court's affirmance of Gable v. Jenkins, 309 F. Supp. 998 (N.D.Ga.1969), aff'd, 397 U.S. 592, 90 S.Ct. 1351, 25 L.Ed.2d 595 (1970), a three-judge court case which held constitutional a Georgia statute quite similar to Article 527,² our initial inclination might be to label the Texas statute undeniably constitutional.³ But Karalexis v. Byrne, 306 F.Supp. 1363 (D.Mass.1969)⁴ a three-judge court case from Massachusetts, together with the Supreme Court's opinion in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969),⁵ persuades us to examine the question more closely. The Court's affirmance of Gable would seem to furnish the coup de grace to a broad interpretation of Stanley. But the presence of Karalexis on the Court's pending calendar⁶ dispels such facile assurances.

In rendering a decision in Karalexis, the Supreme Court may at last specify the extent to which Stanley overrules Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957).⁷ In anticipation of that elucidation, we shall postpone a final ruling on the merits of this case until Karalexis provides clarification of the current state of obscenity law. Whatever that decision, the present degree of uncertainty attending its outcome convinces this court that Article 527 cannot be adjudged unconstitutional on its face.

Plaintiffs' principal challenge is to the good faith of defendants in enforcing Article 527. Plaintiffs assert that the invalidity of the procedures employed to effect their arrests is demonstrative of the bad faith inherent in defendants' prosecution of them. Defendants, on the other hand, maintain that they deliberately constructed a rather elaborate procedure precisely in order to avoid a charge of bad faith. We must therefore determine if that procedure is sufficient to comply with constitutional requirements.

The four officers who carried out the raids on plaintiffs' theaters were briefed by the district attorney's office prior to viewing the films. They were provided with specially prepared forms and given instructions regarding their assigned activities. The officers paid the admission price, viewed films in each of plaintiffs' theaters, and, immediately upon leaving each theater, completed the forms for them in advance. The officers described in detail on the forms both the films viewed and the employees against whom it was anticipated the arrest warrants would issue. A police photographer accompanied each officer and obtained pictures of the films.

Upon completion of these investigations, the collected information was presented to Justice of the Peace Hugo A. Touchy, who subsequently testified in this court that he was satisfied as to the existence of probable cause. The affidavits charging violation of Article 527 were filed in Judge Touchy's court, but, because of administrative difficulties,⁸ were actually sworn to before Justice of the Peace Richard Millard. The arrest warrants were issued from the court of and signed by Judge Touchy. Arrests without warrant were made on two persons whom the officers subsequently observed in the act of showing films that were the subject of warrants previously issued by the magistrate.

The Texas Code of Criminal Procedure, Article 15.05, declares that a complaint is sufficient if it conforms to the following:

"1. It must state the name of the accused, if known, and if not known, must give some reasonably definite description of him.

2. It must show that the accused has committed some offense against the laws of the State, either directly or that the affiant has good reason to believe, and does believe, that the accused has committed such offense.

3. It must state the time and place of the commission of the offense, as definitely as can be done by the affiant.

4. It must be signed by the affiant by writing his name or affixing his mark."

We believe that defendants have fully met the statutory requirements.

The "Obscene Film Offense Report" which the officers completed as a basis for the complaints is a monument to thoroughness and detail. It includes data on the physical environment in which a film was being shown,⁹ and a plethora of specifics that should enable a magistrate to reconstruct a film with accuracy.¹⁰ When considered in conjunction with language in the complaint which tracks the wording of Article 527 as to the proscribed conduct, the information included in the report is sufficient to show that the affiant "has good reason to believe * * * that the accused has committed some offense against the laws of the State." Each suspect is identified by a "reasonably definite" description with regard to both physical appearance and employment function.¹¹ Each report specifies the "time and place of the commission of the offense," and each is signed by the officer making the investigation.

Plaintiffs would apply the teachings of Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), Barnes v. Texas, 380 U.S. 253, 85 S.Ct. 942, 13 L.Ed.2d 818 (1965), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1965) to invalidate the complaints in the instant case. These cases, which hold that authority to seize requires something more than the conclusory assertions of the arresting officer that an offense has been committed, have specifically been held not to apply to the issuance of an arrest warrant where no search is involved. Chapa v. State, 420 S.W.2d 943 (Tex.Cr.App...